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134 CHAPTER 6 Islamic Law Islam, like Judaism, is far more than a faith system. It is a religious civilization that encompasses all aspects of life. And Islamic law, like Jewish law, is a complex system that has emerged to treat norms of individual and communal behavior. Cultural conventions and behavioral expectations were of course normative in Arabian society even before the emergence of Islam, but these were not formal legal formulations. They were, rather, informal (but no less important) norms, expectations and rules of behavior that regulated virtually all aspects of human relationships. These carried over into the period of emerging Islam and were modified to fit the changing ritual, ethical, and social expectations that emerged along with the developing religious community. Muhammad received revelation that radically altered many of the pre-Islamic Arabian norms. He then conveyed that revelation to the people. He is therefore seen as a “lawgiver” in a manner that parallels the role of Moses in relation to the Torah, but neither Moses nor Muhammad was the source of the law. The source in both systems is deemed to be God. Also like Moses, Muhammad was not a legal expert. The “science of law” in Islam emerged later as a human effort to make sense of the divine command in relation to the developing culture and technologies of a nascent religious civilization. Sharī`a The term that best conveys the full behavioral system of Islam is sharī`a, which means “the way,” and in its most basic sense means “the way to the 135 C H A P T E R S I X T E E N water hole.” Like the Hebrew word halakhah, which conveys the sense of “going ” or “walking,” sharī`a expresses a sense of direction for humanity to follow in order to do the right thing before God. Although the two words are unrelated linguistically, they both convey the sense of “the right way.” Sharī`a refers to a system whose legislative authority derives directly and immediately from God. God is the sole legislator of sharī`a. Jurisprudence , on the other hand, is the human endeavor to make sense of the sharī`a. It is the “science of law,” and it consists of the study and interpretive methodologies employed to understand and apply the divine imperative in the lives of the community. In Arabic and in general Islamic discourse, the word for jurisprudence is fiqh. Fiqh The basic meaning of fiqh is understanding or comprehension. Although the human intellect cannot fully understand the divinely authored sharī`a, it can and must be applied to the lives of Believers through human engagement in jurisprudence. During the lifetime of the Prophet, the sharī`a was learned from the ongoing revelation of the Qur’an and the advice and direction provided by Muhammad. The community at that time was highly centralized around Medina and, toward the end of his life, Medina and Mecca. In such a localized situation, all questions could be referred directly to the Prophet. Muhammad’s death marked the end of both the revelation and his personal guidance. Almost immediately thereafter, the conquests moved the community out of Arabia, where it became dispersed among the many conquered peoples. The Muslims continued to appeal to the personal guidance of the first four caliphs, who rendered decisions with the assistance of their companions and advisers as new questions arose. But upon the establishment of the Umayyad caliphate in 66 with its capital in Damascus, judges called qād .īs were appointed by the caliph as his delegates to provincial governors. The Qād . īs The job of the qād .ī (“judge”) was to arbitrate disputes based on his knowledge of the Qur’an and the tradition and to see that government decrees were properly carried out. The social, political, economic, and religious developments during this period of conquest and consolidation were enormous, and the qād .īs were expected to rely on their own best judgment as they rendered their pronouncements. The Qur’an was the ultimate source of authority, 136 A N I N T R O D U C T I O N T O I S L A M F O R J E W S and no judgment could overrule divine revelation. But the Qur’an is not a legal code and does not treat many aspects of life that required consideration. Personal judgment therefore became a necessary tool for problem-solving, and this type of interpretative endeavor...

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